1

FACULTY OF LAW

UNIVERSITY OF LUCKNOW

INDRA DAMAN TIWARI

WHATSAPP: 9721219428

YouTube: Adhivakta Mahoday

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 2

UNIT-1
Introduction to Jurisprudence

Meaning, Scope and Nature of Jurisprudence

Jurisprudence comes from the Latin word ‘jurisprudential’ meaning “knowledge of Law”.
Bentham and Austin had provided the earliest description of this term. Since then, the spectrum
of jurisprudence has grown in many areas and now it covers the whole gamut of law, not just
positive laws. It’s the study of the basic principles of law. The judiciary’s versatility in interpreting
the law to support the State’s social welfare ends has also led to a major expansion of the
jurisprudence.

Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale
of that always varies. It is not derived from any legislative act or state assembly. Lord Tennyson
calls it the “topic of Lawless Law”. Related principles such as the roots of law, the need for law,
the importance of law are discussed by related lawyers. This analysis of legal principles is called
Jurisprudence.

Introduction
Jurisprudence allows us to grasp the more abstract nature of the law. Jurisprudence is an important
part of the law that is based on different hypotheses and interpretations. Jurisprudence speaks
of the relationship between the law, culture, man, nature and other social sciences.

Jurisprudence denotes a logical and analytical study of the law. The term Jurisprudence originated
from the Latin word “Juris” and “prudentia”, which can be divided into two sections, and that is
the jurisprudence that originated from the word “jus”, meaning “law”, and the word “prudential”,
meaning “prudence”, forethought, or discretion.

Jurisprudence can also be referred to as a legal philosophy. Jurisprudence offers us an outline and
a much deeper understanding of the law and the role the law plays in society. It deals with legal
logic, bodies of law and legal frameworks.

The subject matter of Jurisprudence holds much importance in the vast field of Law.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 3

Importance of Jurisprudence:-
1. Fundamental significance is of utmost importance under the field of the study of
jurisprudence. Jurisprudence consists primarily of analysis and the process for building and
clarifying the fundamental principles of law. Jurisprudence is not about making the new
rules; rather, it focuses on current rules in the structure and jurisprudence, and its ideas will
help lawyers develop a different, much better procedure and rules while practicing.
2. Jurisprudence can support students too. In students life it has its own scholastic value.
Jurisprudence not only focuses on primary laws but also addresses the social impact of
those laws. Jurisprudence incorporates both theoretical and logical study of legal
principles.
3. Jurisprudence frequently reflects on the law and its importance for society. There is
discussion of justice and the articulation of law. It deals with the fundamental principles of
the in the eye of law. It helps a person understand the thoughts of law and its divisions.
4. Jurisprudence is the grammar of law, too. It helps a person understand the language and
the legal grammar. Compared with ordinary language, legal language and grammar are
somewhat different, so Jurisprudence teaches a lawyer’s mind so that he can use proper
legal terminology and phrases.
5. Jurisprudence provides interpretation rules and, as a result, helps judges and lawyers
understand the importance of laws passed by lawmakers.
6. Jurisprudence and its relationship with other social sciences provide students with a broad
spectrum of understanding how law can be related and linked to other disciplines.
7. Jurisprudence teaches people that the answer to a legal problem is not hidden in the past or
awaiting in the future, rather than hidden around them in the fundamentals of legal studies
in the answer to a legal issue.
8. Jurisprudence also discusses political and legal rights, and how the system can strive to
balance them.

Nature of Jurisprudence
Jurisprudence analyses conceptions of law. It also seeks to figure out what the basic concepts of
law are. It not only analyses the already defined laws but also analyses and sets the foundation for
new rules. It is the product of Jurists ‘and Philosophers’ thought. They have the right to view,
analyse and comment about the legal system. As such, it can be viewed as an analytical exercise
that does not have immediate practical application. It sets the tone for legislative change.

Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale
constantly shifts. It is not derived from any legislative act or state assembly. Lord Tennyson
calls it, Lawless subject of law. Various concepts like Origin of law, need of the law, the utility
of the law are studied by various Jurists. This study of concepts of law is called Jurisprudence.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 4

Jurisprudence offers answers to multidimensional legal questions. It helps in overall growth of

society. It enhances the capacity of the lawyer to justify rational reasoning. It blesses or hastens a
lawyer’s skill with a sense of philosophy, ethics and morality which helps them move forward in
their discipline. There are also occasions when there are loopholes in the rules; Judges choose the
path of Jurisprudence at those periods. Jurisprudence is the theoretical foundation of the law,
and without it; it is not possible to enforce the law in effect.

Schools of Jurisprudence

1) Analytical or Imperative School (Positivism)

The analytical school is constructive ‘in its approach to social legal issues. It focuses on things as
they are and not what they should be. The positivists’ main concern is the statute, which is currently
considered positum, and not the ideal Law. Legislation, judicial precedents and common law are
the most relevant legal sources.

Analytical school’s motto is “Ubi civitas ibI lex” i.e. “where there is State, there will be no
anarchy”; State is a necessary evil.

The main proponents of this school are: Bentham, Holland, Austin, Salmond, etc:

a) Bentham’s concept of Law

• Bentham (1748-1832), the founder of Positivism, should be considered the father of
analytical positivism, and not Austin, as is generally assumed (Austin owes much to
Bentham, in fact). He was a codified law (Legislation) fighter. The purpose of Bentham’s
work was to ensure the indispensable implementation of a civil code.

• Bentham differentiated expository jurisprudence from censorial jurisprudence (i.e.,

what the law should be). His definition of law is imperative, i.e. law is the assembly of
signs, statements of will conceived or embraced in a state by a sovereign.

According to him, the role of law must be to achieve these ends, i.e. providing food, creating
wealth, fostering equality, and preserving security. Bentham’s philosophy of hedonism or
pain and satisfaction principle has been questioned on the basis that suffering and pain alone
cannot be the only measure of the law’s adequacy.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 5

b) Austinian Concept of Law:

• John Austin (1790-1859) was a professor at the University of London. He applied empirical
method: Law should be carefully examined and evaluated, and the underlying theory
should be discovered and his area of analysis limited only to the Positive Law (Jus
positivism).

• Law, so-called simply and strictly law, set by political superiors to inferiors. Thus, the
school he founded is called by different names, logical, positivistic and analytical
positivism. Austin is believed to be the founder of English jurisprudence.

Austin defined law as a rule set for an intelligent being’s guidance by an intelligent being having
power over him. According to him, so-called proper law includes: law of God, laws of man and
rules of positive nature.

According to him every rule, properly named, must have three elements, command, sanction and
sovereign elements. According to him, law is a sovereign’s order, which mandates his subjects
to do or refrain from such actions. If the order is not obeyed, an implicit threat of a punishment
occurs.

c) Hart’s Concept of Law:

• Professor Hart (1907) can be regarded as the leading representative of British

positivism in the present day. He wrote an important book “The Law’s Definition”,
questioning the theory of Austin. According to Hart, Law consists of laws that are broad-
based and non-optional in nature, but at the same time appropriate for formalization,
regulation and adjudication. He said law is a set of social rules that acquire the character
of legal laws (laws arising from social pressure). Law is a set of laws which can be publicly
ascertained. In Hart’s opinion, law is analogous to a legal structure.

According to Hart, there are two types of rules where the primary rule establishes norms of conduct
or imposes duties (i.e. international law), while the secondary rule is the rule under which the
primary rules may be created, added, omitted or changed. The secondary rules are public or private
(e.g. Laws, Constitution) rules which impart power. From these the rules of recognition are derived
and provide authoritative criteria for the identification of primary rules of obligation.

2) Philosophical school or Natural law school

• The school of philosophy or ethics is concerned primarily with the relationship of law to
certain principles the law is intended to achieve. It seeks to examine the reason for which
it has passed a specific law. It has no historical or analytical substance to it. This school’s
most notable jurists are Grotius (1583-1645), Immanuel Kant (1724-1804),

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 6

and Hegel (1770-1831).These jurists do not recognize law either as a ruler’s arbitrary
order, or as the development of historical necessity. The law is for them the product of
human reason and its aim is to uplift and ennoble human personality.

3) Historical School

Law so closely touches real life that seeing the action of laws in their social setting is only normal.
The Functional Approach to Law (Historical and Sociological Schools) emphasizes actual
social circumstances as giving rise to law and legal structures, and is concerned not with the
person but with the associated man. The historical school arose as a response to legal theories
promoted by logical positivists (as they failed to meet people’s needs) and the thinkers of natural
law. This school’s motto is “Ubi societas ibi lex”, that is to say, “where there is culture, there is
law.”

4) Sociological School

Auguste Comte was the first to use the term sociology, and is considered the father of
sociology research by some jurists. The approach used by Comte may be called scientific
positivism. He pleads for applying scientific method to sociological research. Society is like an
organism and if it is driven by scientific principles it will advance. The major stages through which
sociological school evolved and developed are: Empirical scientific approach to law; impact of
Darwinian evolutionary theory; impact of psychological theories; Unification stage.

The “functional” role of law and its effect on society constitutes a basic philosophy underlying this
school Roscoe pound rightly pointed out, “the sociological jurists look more for the working of
law than for its abstract content.” Roscoe pound can be said to be the father of sociological
jurisprudence in America. Montesquieu is the forerunner of the sociological method in
jurisprudence.

• Herbert Spencer introduced the organic theory of society in a scientific analysis.

• He applied sociology to the evolutionary pattern of society.

• Duguit was influenced by Durkhiem who took inspiration from Comte himself.
Durkhiem’s key argument, on which Duguit focused himself, was that he made a
distinction between two kinds of men’s needs in society.

1. There are certain individual needs that are addressed by mutual assistance and

2. The needs of individuals are varied and met by the exchange of services.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 7

Therefore the most critical aspect of social stability is the division of labor. He called it Unity with
society. This social cohesion grows through the creation of free individual activities.

5) Realist School

Sociological Jurisprudence in America formed an extreme wing under the realist school name.
They are concerned with researching the law as it operates and functions which means examining
the social forces that make a law on the one hand and the social consequences on the other. Instead
of abstracting logical deductions from general rules and the inarticulate conceptual premises
underlying a legal system, they focus more on what the courts can do.

American Realism is not a jurisprudence school but a thinking pedagogy.

Scope of Jurisprudence

The scope of Jurisprudence has been aptly put forth by Karl Lwellyn to be ‘as bigger as law and
bigger’. The scope of Jurisprudence has been dealt with in the following sub-heads:

Living Law Concept & Social Engineering

In addition to the study of formal law or paper law it aims at the practical study of law. Ehrlich’s
definition of Living Law linked law to the actual existence of society and thus promoted
the empirical study of law within the context of society. The significance in India of Living Law
becomes imperative because there is a large gap between formal legislation and norms which
are prevalent in culture. An example of the difference between practicalities in society and
formal laws can be laid down in the Dowry Prohibition Act, 1961, where further changes were
made to the laws to make the offence punishable with stringent Punishments but the mischief in
the society is not curtailed.

Vast Spectrum

The spectrum of jurisprudence is not limited to one or only a few legal frameworks being studied.
It concerns a comparative review of various legal systems proposing codification and
institutional changes by legislation. The nineteenth century was characterized by a general trend
towards codification. In the field of law reform, jurisprudence should be an innovative study by
concentrating attention on those parts of law that do not serve the purpose for which they were
built.

Directive Principles of State Policy (DPSP) and Jurisprudence

The spectrum of jurisprudence does not restrict itself to understanding and applying those
principles. It includes also the laws that are nevertheless not strictly enforceable, central in the

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 8

country’s governance. Recent writings on policy perspectives have led to the conclusion that DPSP
is identical to Raj Dharma, the basic principles of governance contemplated in the conventional
Indian culture.

In Minerva Mills v. Union of India it was held that: in other words, the Indian Constitution is
built on the cornerstone of equilibrium between Part III and Part IV. It should also be noted that
the Indian principle of ‘rights’ often includes a ‘duty’ aspect. So, even if the DPSP are
unenforceable, they are fundamental in the governance of the country and the State is bound
by them.

The jurisprudence also includes the fields of gender and compensatory justice (LGBT)

The marginal and underprivileged individuals of the society including LGBTQ community are
given opportunity to raise their issue in honourable courts by filling a Public Interest Litigation to
support their cause.

LAW
Law plays different roles in the lives of everyone. A single word cannot define law. There cannot
be a word which can equate law. One can draw analogy to understand law. Law is like a temple
which is designed so that men and women can live in his or her palace of peace. Law is love, which
is inarticulate in nature. Both have the power to regulate human emotions. Law is as complex as
love. An analogy can be drawn between law and sea. Both law and sea are vast and as a drop adds
to the quantity of water in the ocean, in the same way every judgement adds itself to many
precedents. Also, there is no life without water, there is no life without law.

Law is not a mistress, law is a spouse. It stays with you, wherever you go. Law is an invisible force
that controls every human being. Law connects us like Life and Water (LAW). All these statements
gives the idea that law is universal.
Salmond defined law as, “ the law may be defined as body of principles recognised and applied
by the state in the administration of justice.” Though Salmond did not define justice yet his
definition can be considered as the most workable definition.
According to John Chipman Gray, “the Law of the State or of any organised body of men is
composed of the rules which the courts, that is judicial organ of the body lays down for the
determination of legal rights and duties.” His definition also received criticism that his definition
focused neither on nature of law nor on statute laws.

Nature and Scope of Laws

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 9

What is the nature of law or what is the essence of law is a long disputed question. Various Greek
thinkers have already raised several questions on the topic and the answer is still not clear. That
does not mean that there is no clear answer but there is not a complete answer which can be claimed
to be absolute. Also, this question has preoccupied Jurisprudence and philosophy of law.

There are two kinds of law. One is based on justice, the other one is based on control. The latter
part is in use today. “Might is right” principle is followed. It is retribution instead of restoration
which should be followed.

Justice is a set of universal principles which guide people to analyse what is right and what is
wrong. It disregards the culture and society one lives in. Fiat justitia ruat caelum is a Latin phrase
which means, “Let justice be done, though the sky falls.”
Social control refers to mechanisms which regulate individual and group behaviour. E.A. Ross,
the famous sociologist believed that it is not the laws that guide human behaviour but it is the
belief systems that guide what individuals do. Social control mechanisms can be adopted as laws
and norms which control and define human behaviour.
Law serves many purposes and functions. It helps to maintain peace. Violence should not be
allowed in the society and thus, peace is maintained by the orders or we can say the laws of the
government. Law also helps to establish standards. It also protects rights of the people. Without
laws, people will not even get the basic rights which they deserve.

Also, law can be called as a good career option. From Mahatma Gandhi to Barack Obama, all are
associated with the career of law. It acted as a stepping stone to their success. There are various
career options in law like litigation, civil services, professors or one can go in the corporate sector.

Jurisprudential Schools of Law

Jurisprudence refers to the study of law. It can also be called as a science which deals with creation,
exploration and enforcement of laws. The word is derived from juris prudential which means
knowledge of the law. If one understands the theories and philosophies then one can get a better
understanding of law. Legal thoughts can be viewed from the angle of different schools of
jurisprudence which are given below.

Positivist School
• According to Positivist school, law is the command of the sovereign. It says that decisions
can be made logically from predetermined cases and ignoring the moral aspects. It is also
called Analytical school.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 10

• This school says there isn’t a connection between law and morality. For example, Judges
may not want the landlord to evict the elderly old lady from the land on which the rent is
overdue. Though the laws may say that if the rent is not paid, the defaulter has to vacate
the land. Positivist law school says that judges should decide cases in accordance to law
and keeping aside their morals.
• It believes that integrity of law is maintained through neutral judiciary. Law is what is laid
down. What ought to be the law factor should be ignored.
Also, basis of law should be maximum happiness of maximum people.

Historical School
• “Law is the product of social consciousness.” This social consciousness started even before
sovereignty. It started from the very beginning of the society. Sir Henry Maine, Edmund
Burke are the renowned jurists.
• The Historical school is based on Volksgeist theory. It says law is based on the general will
of the people. It grows as the nation grows. Also, a law which is suitable for one set of
people may be useless for the other which gives us the point that there is no universal
application of law. The laws are based upon the local customs, local behaviour and the
current thought processes of the society. All these affect law and makes it a peaceful
society.
• The theory focuses a lot on the past. However, it mentions that laws must change with time.
Laws must be what the society demands.

Natural School
• Natural law is a philosophy that focuses on the laws of the nature. It says that there are
some laws which all humans deserve as they are inherent in society. It opposes the positivist
theory. A lot of emphasis is placed on morals and ethics of the society.
• It is based on the reasons they make for deciding between good and evil.
• Immanuel Kant, Hegel and Grotius are eminent jurists. They regarded law neither as
command of the sovereign nor a product of consciousness rather based on rationality and
reasonableness.
• The main aim of Philosophical school or Natural school is to elevate humans from evil and
raise them to do good.
• Even in Declaration of Independence and Bill of Rights of US Constitution, Thomas
Jefferson has cited Natural Law theory calling it “the laws of Nature and of Nature’s God.”

Sociological School
• This school emerged as a synthesis of many jurist’s thoughts. This school of thought lay
emphasis on functional part of law rather than the abstract part of law.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 11

• They regarded law as a social institution. They believed that laws are not created by state.
Laws come from society. The laws are not sanctioned by the state but by the awareness on
the part of people.
• These laws establish an interconnection between society and laws. Both Historical and
Philosophical schools caused a hindrance to social and legal reforms, as a result
Sociological school was formed.
• This school is the only school of jurisprudence which has a definite program which the
other schools do not have. They placed a lot of emphasis on the concept of justice.

Realism School
• This school of law emphasises a lot on what courts may do rather than the abstract ideas.
Law exists as a matter of reality.
• Allen observed that “fermentation is necessary in legal chemistry for without it the liquor
of” the law becomes sour and stale. This takes into account the customary practices and
circumstances for providing with a new law. The theory can be understood with descriptive
way or prescriptive way or both.
• In this it is believed that law is a body of government for the administration of justice. Like
Positivist theory, this also sees law as will of the state but it is done through administration
of justice.

Comparative School
• Professor Kecton considers, “the development of Comparative Jurisprudence is the
development of two or more systems of law.” However, the term has one meaning.
• As historical school is concerned with time, this school is concerned about space. It collects
and examines rules that are prevalent and the man who agree and disagree with the system
and tries to find a system which is natural. Natural system will be the system what all men
wanted to have but due to different laws couldn’t.
• Comparative Jurisprudence does a comparative analysis and aids Historical as well as an
Analytical School of Law.

Evolution of Law

Christianity and Law

• Many centuries ago, it was believed that according to Christianity, God and Old Testaments
created the law. Law was a set of rules written by God. People believed in Divine power.
Also, it was believed that only if the laws are considered to be sacred then it will be
followed.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 12

• Christians placed a lot of emphasis on morals. They believed that if the foundations of law
are weak, then society will easily revise them according to their needs. The laws will
become crooked according to man’s selfish needs.
• As Christians, it was believed that the omniscient, omnipotent, omnipresent loving God is
the world’s Lawgiver (Psalm 127:1). He provides Himself as an absolute basis for law. The
Christian system of law did not change according to the whims and remained static.
• Christianity did not neglect human rights. It ensured certain human rights that are written
in the Bible. The Bible has certain instructions specified and He commands us to follow
them. The Bible tells us what God believes to be good and what He wants from us: “to do
justify, and to love mercy, and to walk humbly with thy God” (Micah 6:8).
• It was believed that one can hoodwink man’s laws but no one can escape from God’s
punishment.
• This theory led to diverse views. The people who believed in God were questioned by
others. People questioned them because there was no evidence of God coming to earth and
formulating the laws.
As a result, the definition changed over time. Later people started believing more in themselves
than in the supreme commander. The meaning of law became closer to humans. The definition
shifted its emphasis from God to lawmakers.

Sovereignty and Law

• There was a time when people believed in command of the sovereign. Various Political
philosophers have their own controversial statements related to sovereignty. It was
regarded as absolute. No power is above superior.
• Another feature is, that it was considered to be permanent. It did not end with the death of
the king, rather the eldest son of the king became the next ruler, the principle of
primogeniture.
• Now, this poses a question what if the new king is inefficient? No one had the right to
remove the king.
• Starting with Austin’s theory which meant that sovereignty is the command given by
superior to inferior. So, whatever the King proclaimed can be considered as law and should
not face any revolt. Divisibility of power was not allowed. The ultimate power rested with
the king and he was the one who imposed all the laws on the society.
• If there was only one person who made all the laws, is he competent enough to frame laws
for all the sectors of the society? The laws made by King could not be questioned. Whatever
the king said, prevailed.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 13

• So, what if a particular sector of society is unhappy with the existing law? They had no
right to question the king. Thus, Austin’s theory focused on supremacy.

In present times, it is what the judges say. In one of the beautiful poems, law is described as,
“Law cannot bind me, Law cannot judge me,
I can change the law, As per my convenience.”

STATE
The word state has been derived from the Latin word ‘status’, which implies standing. So, in the
etymological sense, the word state denotes position or standing of a person or of a body of person.
The state is the highest form of human association. It is necessary because it comes in to existence
out of the basic needs of life. The most important purpose of state is to make life possible and to
protect the life.

Definition
Salmond- ‘State or political society is an association, of human beings established for the
attainment of certain ends by certain means’

Goodhart- “The purpose of state is to maintain peace and order within a particular society.
Therefore, the most essential purpose of state is to make life possible.”
Aristotle – ‘State is a union of families and villages having for its end, a perfect and self-sufficing
life, by which we mean happy and honourable life.

Woodrow Wilson- ‘state denotes a set of people organized for law within a definite territory’.

Oppenheim- ‘a state comes into existence when people are settled in a country under their own
sovereign government’.

According to Article 12 of the Constitution of India, the term ‘State’ can be used to denote the
union and state governments, the Parliament and state legislatures and all local or other authorities
within the territory of India or under the control of the Indian government.

Essential element of state

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 14

1. Population-it implies a significant number of human beings living together. there is no

existence of the state without population. State is a community of person .it is a human
political institution without a population there can be no state.
2. Territory -it is a very important element of state. according to Laski ‘the territory of a state
is the region over which it exercises sovereignty’
3. Government- government is a organisation of machinery or agency or magistracy of the
state which makes implements,enforces and adjudicates the law of the state .each
government has three organs -legislature ,executive ,judiciary.
4. Sovereignty-it is the most exclusive element of a state. Without sovereignty no state can
exit. Sovereignty is the basis on which the state regulates all aspects of the life of the people
living in its territory.

Classification of state
1) Ancient classification –According to Aristotle: -
a) Monarchy
b) Oligarchy
c) Democracy
• Monarchy-As a matter of fact, it is a system of Government in which the power is central
in the hands of a single individual and continues with him thorough out life. It may be
hereditary and through election as well. But a monarchy where even elections take place,
the king is a' nominal head in Britain which we can call as limited monarchy.

• Oligarchy-It is to be noted that it is a system of Government in which the reigns of the

Government rests in a small group of nobles. In other words, a small group of people has
the control of the State: a small body of men who have the supreme power of a State in
their hands. But today we do not find any trace of such a State.

• Democracy -Democracy is a form of Government "in which the people have a say in who
should hold power and how it should be used." It is also said to be "'a form of Government
in which the supreme power is vested in the people collectively, and is administered by
them or by officers appointed by them.

2) Modern Classification-
a) Unitary state
b) Federal state

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 15

c) Confederation

According to another classification states are of the following kinds

Unitary State -It is to be noted that it is a state in which the sovereign power is vested in a central
authority, that is Supreme legislative body. Law making function is exercised in such a State by a
legislative authority. All powers are vested in it. But it must be kept in mind that under an unitary
system of government there may be fully developed autonomous governments, they are not
inconsistent with unitary system of ad-ministration. But these governments are not separate state
governments.
Power of such governments is always subordinate and delegated which can be modified and raised
by the supreme legislative body. Great Britain is the best illustration of this form of State.

Federal State-it is the product of an agreement between the sovereign and autonomous states.
This agreement creates federation. Under a federal State, there is dual system of governmental
administration. A Central government or Central administration extending over the entire territory
of the State and other of the federating states within the limits of their defined territory. In other
words, the field of government is divided between the federal and the state Governments neither
of which subordinate to the other but are coordinate and independent with the other but are
coordinate and independent within the sphere allotted to them.

Confederation -A Confederation is constituted by a number of independent and sovereign states

bound together by an international treaty or compact into a union with organs of government
extending over the member states and set up for the purpose of maintaining the external and
internal independence of all. The Confederation is not a State at inter-national law, the individual
stales maintaining their international position.

(i) Relation Between Law and State-According to

Paton, there are following three main theories about the relationship between the State and the
Law-

1. State is Superior to and Creator of Law-

According to Starke, state is above law. Hobbes,Bentham and Austin are of the view that state is
above law. To Hobbes, Bentham and more particularly Austin State is above and superior to law.
Law is the product of the State. Austin defines law as the command of the sovereign. According

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 16

to Austin every positive law obtaining in any community is a creature of the sovereign or State. If
there is no Sovereign or State there is no law. It defines law in terms of State. But when Austin
defines Sovereignty and the State, he adopts a practical test. Hindu jurists proclaimed the theory
of the supremacy of law. It was the law that was sovereign and not the king.

Law and State are the Same- Kelsen is the ardent supporter of this theory that law and State are
really the same if we look at them from, different angles. According to Kelsen, State is only the
legal order if we look at it from different angle When we think of abstract rules, we think of the
law when we think of the institutions which those rules create, we have state in mind.

Theories of origin and evolution of state-

1-The divine theory
2-The natural theory
3-The social contract theory
4- Patriarchal theory

Divine Theory:
According to this theory , the state is a creation of God. This theory gained popularity in middle
ages in Europe because of the influence of Christianity, which belief the King to be the
representative of God and they have divine right to rule.

The Natural Theory:

Also known as Aristotles theory of origin of State, this theory suggests that man is a social being
and instinct of his sociability has given rise to the origin of the State. As per this theory the State
is to promote general welfare of its people. However, it fails to point anything upon the influence
of various factors which led to the formation of a State.

The Social Contract Theory:

According to this theory , the State is a creation of an agreement by the people in that territory.
The people binds themselves to be abided to the agreement formed with mutual consent.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 17

And at last, The Patriarchal Theory:

As per this theory , history of mankind reveals that primitive societies were closely knit together
by the bond of kinship. The family and not the individualism was the unit of society. The theory
mainly is influenced by Henry Maine , who pointed that, eldest member of the family was the head
of the family, and had complete control over the members of the family.

Functions of the State:

As with all social institutions, the state is organized around a set of social functions. It is an
important agency of social control which performs this function through laws.
The main functions are maintaining law, order and stability, resolving various kinds of disputes
through the legal system, providing common defence, and looking out for the welfare of the
population in ways that are beyond the means of the individual, such as implementing public health
measures, providing mass education and underwriting expensive medical research. From a conflict
perspective, the state operates in the interests of various dominant groups, such as economic
classes and racial and ethnic groups.

Lean Mayher (1971) stated the following basic functions of the state:

1. Limiting internal power struggles to maintain internal peace.

2. Bringing power to bear on other societies in defence of national interest or in expanding and
building empire.

3. Controlling the members of society so as to bind them to the pursuit of collective goals.

4. Recognizing and implementing the interests and demands of various groups.

Sources of law
Introduction
The meaning of the term “sources of law” differs from writer to writer. The
positivists use the term to denote the sovereign or the State who makes and
enforces the laws. The historical school uses the term to refer to the origins of
law. Others use it to indicate the causes or subject matter of law. Prof. Fuller,
in his “Anatomy of the Law”, states that a judge interprets and applies certain
rules to decide upon a case. Such rules are obtained from various places which

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 18

are known as “sources”. He further goes on to give examples of the common

sources of law such as codified laws, judicial precedents, customs, juristic
writings, expert opinions, morality and equity. Holland has defined the term to
mean the sources of the knowledge regarding law.
Salmond’s Classification
According to Salmond, there are two main sources of law- formal and material.
• Formal sources are those from which law derives its validity and force, that is, the will of
the State which is expressed through statutes and judicial decisions.
• He sub-divided the material sources into legal sources and historical sources.
• Legal sources comprise of legislations, precedent, custom, agreement and professional
opinion.

Austin’s Classification: -
Austin said that the term ‘source of law’ has three different meanings:
1. This term refers to immediate or direct author of the law which means
the sovereign in the country.
2. This term refers to the historical document from which the body of law can be known.
3. This term refers to the causes that have brought into existence the rules that later on acquire the
force of law. E.g. customs, judicial decision, equity etc.

Keeton’s Classification: -
Keeton said that the sources of law has emerged as a critique of Salmond’s classification. He
defines the term as those materials from which law is eventually fashioned through judicial
activity. He classified the sources of law into- binding sources and persuasive sources. Binding
sources are those which have to be necessarily followed by the courts.
• Legislations, judicial precedents and customs are examples of such source. Persuasive
sources are those which come into play when there is absence of any binding source on
any particular subject. Foreign precedents, professional opinions and principles of morality
or equity are examples of persuasive sources of law.

Custom as A Source of Law

The word ‘custom’ is derived from an old French word ‘Costume’. Some says that the word
‘custom’ is based on Latin word ‘Consuetudo’. In Hindi the word ‘custom’ means
‘reeti’,‘vyavahar’,‘rasm’, or ‘riwaj’.Custom enjoys a very important place in every legal system.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 19

Definition
According to Allen – ‘custom as the uniformity of habits or conduct of the people under like
circumstances’
Salmond: custom as those principles that are acknowledged and approved not by the power of the
state, but by public opinion of the society at large.
Holland:He defined custom as “a generally observed course of conduct.”
Austin: According to Austin, “custom is a rule of conduct which the governed observe
spontaneously and not in a pursuance of law set by a political superior”.
Halsbury: custom is some kind of special rule which is in actual existence and possible followed
from time immemorial and which has acquired the force of law in a specified territory, although it
may be contrary to or inconsistent with the general law of the land.
Harprasad v. Shivdayal:- In this case the judicial committee of the Privy Council observed,
custom as a rule which in a particular family or in a particular district or in a particular sect, class
or tribe, has from long usage obtained the force of a law.

Origin of custom: - some jurists are of the opinion that customs originate because of necessity
or convenience. the opinion of the historical school that customs have their basis in the common
consciousness of the people .In analytical school assert that judicial decisions are the basis of
customs. Custom came into existence because of the tendency of human beings to imitate each
other.
Essentials element of a valid custom
1) Reasonableness: - A custom ought to be reasonable. Whether a particular custom is reasonable
or not, shall depend upon the discretion of the court. This is one of the most difficult question what
is reasonable? Allen said seems to be not that a custom will be admitted if reasonable, but it will
be admitted unless it is unreasonable . The divisional court of the king s bench defined as “fair and
proper, and such as reasonable, honest and fair-minded men would adopt”.
2)Conformity with Statutory Law: - In order to be valid, a custom must be in conformity with
statutory law. Most of the legal systems of the world have laid down. A rule that a custom can be
abrogated by a law passed by the legislature. However, in some cases, a custom can even override
the codified law.
3) Morality: - Mostly custom are on the basis of morality.
4) Certainty: -custom must be certain. A custom, however, ancient must not be indefinite and
uncertain. Certainty is an indispensable condition of a valid custom. unless a custom is certain it
cannot be proved to have been time out of mind. Jessel M,R, said “when we told that custom must
be certain that relates to the evidence of a custom”.
5) Observance: - Custom must be followed by the all person.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 20

6) Continuity: - In order to be recognized as a custom must be practice continuously.

7)Peaceful Enjoyment: - A custom should have been enjoyed peacefully in the society in order
to be recognized as law.
8) Binding or obligatory for continuously tone stated that a custom must be supported by the
opinio necessitatis. The public which is affected by the usage must treat it as obligatory and not a
facultative one.
9)Public Policy :- A valid custom should not be opposed to public policy .in this sense ,public
policy implies the principles on which the social laws are based .

Classification of custom
1. Legal Customs
2. Conventional Customs

1. Legal Customs: - These are those customs which are recognized by the courts and thus operate
as the law of the land. They are divided into two categories,
A) General Customs: - These customs are prevalent throughout the territory of a state and the
general customs constitute one of the sources of the common law of the land. They are considered
to a part of the law of the land.
B) Local Customs: - These customs are applicable only to a particular locality, like, city village,
district etc. These are geographical local customs and personal local customs. These customs of
particular localities are recognised by the courts even in derogation of the common law.
2. Conventional Customs: -The authority of conventional customs or usages depends upon their
implicit incorporation into contracts. These are those customs which are incorporated into an
agreement and are applicable only to the parties to that agreement. Parties to an agreement may
agree to follow then either expressly or impliedly. A conventional custom is also called ‘usage’

When Custom Become Law: -There are two theories

1. Historical Theory.
2. Analytical Theory.
1) Historical Theory: -The main exponents of this theory are Karl Von Savigny, his disciple
Puchta, Blackstone, and Sir Henry James Summer Maine. According to Savigny, custom is per se
law. He says law is based on custom. A custom carries its justification in itself.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 21

• According to Puchta, the custom is independent of the law of sovereign. It is independent

of any declaration or recognition by the state. Sir Henry Maine regards custom as source
of formal law.
• According to Manu, “custom is transcendent law”.J.C.Gray also contends that great many
laws were brought in not only without the wishes of the people but against the wishes of
the great mass of them. Allen also pointed out that all customs cannot be attributed to the
common consciousness of the people
• According to this theory, the growth of law does not depend upon the arbitrary will of any
individual. Custom is derived from the common consciousness of the people. It springs
from an inner sense of right. Law has its existence in the general will of the people.
• The Historical theory has been criticized by Paton as “The growth of most of the customs
is not result of any conscious thought but of tentative practice”

2) Analytical theory: - The main exponent of this theory is Austin. According to him, custom is
not law in itself, but it is a source of law. If a custom is not recognized by the legislation and
approved by the judiciary, it will not become a law.
• Gray also says that true view is that the law is what the judges declare. The legislation,
precedents, customs and morality are all sources of Law.
• According to Holland, customs are not laws when they arise but they are largely adopted
into laws by State recognition. A custom is a law only to the extent to which, and from the
time, when the sovereign sanctions it.
• According to him, custom is a legal material and source of law. This view is also supported
by Salmond. Gray also concedes that custom is one of the sources of law but it is certainly
not the sole source of law.
• The Analytical theory has been criticized by Allen in these words-“Customs grow by
conduct and it is therefore, a mistake to measure its validity solely by the element or express
sanction accorded by courts of law or by other determinate authority”
Difference Between Custom and Prescription
1. Custom is long practice operating as a source of law; prescription is long practice operating as
a source of rights.
2. Historically, a prescription is a personal custom that is to say, a custom limited to a particular
person or his predecessor in title, whereas, a local custom is limited to an individual place.
3. When a course of conduct is practiced for a time it gives rise to a rule of law known as custom,
but if it gives rise to a right, it is called prescription.
4. In case of custom, the old rule as to time immemorial still subsists, but in case of prescription
the fiction of lost grant operates and it is governed by Statutory prescribed time. Thus, a
prescriptive right to air and light can be acquired by uninterrupted use for period of twenty years.
5. A custom originates from long usage, whereas, a prescription originates from waiver of a right.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY

 22

6. A custom claim is based upon custom when it depends on a general rule of property. A
prescriptive right, on the other hand, is personal to the claimant.
7. The limitation of reasonableness which, we shall see, applies to customary rights has no
application to claim based on prescription.
8. Custom is based on long usage, but prescription is based on lost grant and operates as sources
of right.
9. A custom must be reasonable and conform to justice, public policy and utility, but that is not
necessary in the case of prescription.
10. Custom is a generally observed course of conduct and has the force of law on account of long
usage. Prescription means the acquisition of right or title by user or possession in the manner laid
down by law
11. Custom must be ancient to make it binding, whereas prescription requires only a period of 20
years.
12. Custom has given rise to law, whereas, prescription has given rise to legal rights.

INDRA DAMAN TIWARI FACULTY OF LAW LUCKNOW UNIVERSITY